I. INTRODUCTION
II. AN EXAMINATION OF THE HISTORY BEHIND THE
PRIVILEGE AGAINST SELF-INCRIMINATION
A. The Deification of a Feudal Document
B. Development of Two Rival Systems of Criminal Procedure
C. The English Crown's Interest in Inquisitorial Procedure
D. The Tudor Dynasty and the English Reformation
E. Opposition Against Inquisitorial Procedure Intensifies
F. The Stuart Dynasty and the End of the Oath Ex Officio
G. The Privilege Migrates to Colonial America; Its Use in
Criminal Procedure
H. The Common Law Privilege Becomes a Constitutional
Right
I. Criminal Procedure in the Newly-Established United
States
III. THE CURRENT SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION
IV. DEVIATION FROM THE COMPULSION ANALYSIS CAUSES
TURMOIL IN CONSTITUTIONAL INTERPRETATION
A. The Supreme Court's Inconsistent Policy Rationales
B. Trading the Compulsion Analysis for the "Penalty"
Theory
C. Instability in the Lower Courts Regarding Pre-Arrest Silence
V. WHERE DO WE GO FROM HERE? THE COMPULSION
ANALYSIS IN ACTION
VI. CONCLUSION

I. INTRODUCTION

Early in Los Angeles on the morning of December 3, 1961, a man with
multiple prior felony convictions named Eddie Griffin emerged from a
large trash box in an alleyway, buttoned up his trousers, and walked
away. (1) Inside the trash box was a young girl named Essie Mae
Hodson--savagely beaten, bleeding, and barely conscious. (2) When police
discovered Essie Mae's body, they took her to a nearby hospital,
where the doctors treated her for a fractured skull, bruises on her
scalp, eyes, forehead, and lips, and multiple abrasions on her ankles,
hips, and back. (3) Despite the doctors' efforts to save her, Essie
Mae died from her injuries the following afternoon. (4)

Authorities arrested Eddie Griffin in Mexicali, Mexico and charged
him in California for Essie Mae's murder. (5) Upon his arrest,
Griffin told police that on the morning of the incident, he was inside
an apartment that Essie Mae shared with her boyfriend, that Essie Mae
suffered her injuries from a struggle between her boyfriend and Griffin,
and that after the struggle, Essie Mae--even though she was badly
injured--took Griffin to the trash box behind the apartment building and
voluntarily engaged in intercourse with him. (6) But Griffin refused to
testify at trial. (7) During trial, the prosecutor commented on
Griffin's failure to testify: "The defendant certainly knows
whether Essie Mae had this beat up appearance at the time he left her
apartment and went down the alley with her.... Essie Mae is dead, she
can't tell you her side of the story. The defendant
won't." (8)

Griffin was convicted of Essie Mae's murder in the first
degree. (9) The California Supreme Court affirmed the conviction, and
subsequently the U.S. Supreme Court granted certiorari to determine
whether the prosecutor's "comment on the failure to testify
violated the Self-Incrimination Clause of the Fifth Amendment,"
(10) which provides that no person "shall be compelled in any
criminal case to be a witness against himself." (11) In a decision
entrenched in controversy to this day, (12) the Griffin majority
reversed Eddie Griffin's conviction, holding that the
Self-Incrimination Clause prohibited prosecutorial comments on a
defendant's refusal to testify at trial. (13)

The majority failed, however, to evaluate whether the
prosecutor's comment actually exerted a compelling pressure on
Griffin to testify at his trial. (14) Instead, the Justices opined that
the comment was unconstitutional because it imposed a
"penalty" upon Griffin's exercise of the privilege
against self-incrimination. (15) Furthermore, the majority failed to
analyze whether the language or history of the Self-Incrimination Clause
supported its decision. (16) Rather, the majority fashioned a new
evidentiary rule prohibiting comments to jurors regarding the drawing of
a natural inference from silence. (17,) As a result, the Griffin
majority created a new constitutional right without any basis in the
Constitution itself. (18)

It is true that the U.S. Constitution was intended to endure and
that the Framers envisioned some degree of flexibility in its
interpretation. (19,) However, without properly considering its language
and history, the Constitution becomes, as Thomas Jefferson said, "a
mere thing of wax in the hands of the judiciary, which they may twist,
and shape into any form they please." (20) This risk is magnified
when the judiciary fails to articulate a consistent rationale underlying
a constitutional right, as seen with the Self-Incrimination Clause,
where at least a dozen justifications have been suggested for the
privilege. (21) Indeed, Justice Arthur Goldberg observed that the
privilege is "regarded as so fundamental a part of our
constitutional fabric, despite the fact that the law and the lawyers
have never made up their minds just what it is supposed to do or just
whom it is supposed to protect." (22)

As a result of the Court's failure to articulate a consistent
rationale underlying the privilege, lower courts are deprived of a
framework with which to approach self-incrimination problems. (23)
Additionally, the Griffin majority's expansion of the
privilege's scope has been met with robust opposition, (24)
especially from within the Court itself. (25) Furthermore, there is an
open question regarding whether the Griffin rule extends to prohibit
evidence of a criminal defendant's pre-arrest silence, (26) which
has caused conflicting jurisdictional rules on the issue among lower
courts. (27) As a result, verdicts in criminal trials involving evidence
of pre-arrest silence vary significantly throughout the United States,
as the admission of such evidence often makes the difference between
conviction and acquittal. (28)

In 2013, the Supreme Court granted certiorari in Salinas v. Texas
to resolve the circuit split on the use of pre-arrest silence. (29)
However, because the petitioner in Salinas did not expressly invoke the
privilege against self-incrimination during his pre-arrest interview
with police, the Court declined to reach the issue of whether the
Self-Incrimination Clause prohibited the prosecutor from later using the
petitioner's pre-arrest silence as evidence of his guilt. (30) To
be sure, the Court's equivocal approach to the principles
underlying the privilege, the unresolved issue of whether the privilege
bars the use of pre-arrest silence as substantive evidence of guilt, and
the resultant discord among the lower courts regarding pre-arrest
silence have detrimentally impacted criminal procedure in the United
States.

Although the Self-Incrimination Clause has been characterized as
"an unsolved riddle of vast proportions, a Gordian knot in the
middle of our Bill of Rights," (31) it is nonetheless possible to
clarify precisely what the Clause protects and how it constitutionally
operates. (32) This Article maintains that the Fifth Amendment's
text and history demonstrate that the compulsion analysis is the proper
constitutional inquiry for addressing self-incrimination issues. (33)
The Court's deviation from this analysis in Griffin and its progeny
has distorted the privilege's constitutional scope, causing much
turmoil in self-incrimination doctrine. (34) However, a consistent
return to the compulsion analysis will remedy the confusion regarding
pre-arrest silence and will provide a much-needed framework for
resolving self-incrimination problems in the future. (35)

Part II explores the rich and dramatic development of the privilege
against self-incrimination, and how the privilege's history has
influenced American jurisprudence. It traces the privilege's roots
to the impassioned resistance against the English prerogative and
ecclesiastical courts' extensive use of a powerful oath that
compelled the criminal confessions of many political and religious
dissidents. Part III describes the modern scope of the privilege in the
United States. Part IV analyzes the Supreme Court's deviation from
the compulsion analysis in Griffin and how that deviation has
contributed to difficulties in the privilege's interpretation
today, including the unresolved split regarding prosecutorial comments
on pre-arrest silence. Part V considers the future of the Griffin rule,
illustrates how the compulsion analysis applies to pre-arrest silence,
and demonstrates how this approach safeguards the liberties undergirding
the privilege and remedies the turmoil surrounding its interpretation.
Part VI concludes the analysis.

II. AN EXAMINATION OF THE HISTORY BEHIND THE PRIVILEGE AGAINST
SELF-INCRIMINATION

The importance of examining history to understand the foundations
that drive the privilege against self-incrimination cannot be
overstated. Justice Felix Frankfurter once observed that the privilege
against self-incrimination is a "specific provision of which it is
peculiarly true that a page of history is worth a volume of logic."
(36) Similarly, Chief Justice Earl Warren professed that the privilege
is "a right that was hardearned by our forefathers. The reasons for
its inclusion in the Constitution--and the necessities for its
preservation--are to be found in the lessons of history." (37)
Historians, however, have disputed the privilege's origin.

The privilege's history and evolution were originally traced
by John Henry Wigmore, one of the most prominent legal scholars in U.S.
history. (38) Building upon Wigmore's work, Professor Leonard Levy
has led the traditional view of the privilege's history, which
places its primary development in England during the thirteenth to
seventeenth centuries, when the English common law mounted an assault
against the prerogative and ecclesiastical courts' inquisitorial
practices. (39) Professor Levy posits that the privilege was motivated
by conscience and fairness in criminal proceedings, and developed in the
context of the great political struggle to establish individual
liberties against arbitrary royal prerogative. (40)

Recent scholarship, however, disputes that the privilege against
self-incrimination emerged from the English common law (41) One view
contends that the privilege was originally recognized in the thirteenth
century in the European ius commune--the merger of Roman and canon
law--and subsequently developed in continental Europe's
ecclesiastical courts. (42) These historians maintain that by the time
the privilege was recognized in the English common law, it had already
been fully developed in the European ius commune. (43) Nonetheless,
despite their assertions that the ius commune played a greater role in
the privilege's development, these historians concede that the
modern-day privilege was in fact attributed to the English common
law's later adoption and expansion of it. (44)

A third viewpoint contends that the privilege against
self-incrimination did not fully develop until the late eighteenth
century, when changes in criminal procedure regarding the use of defense
counsel truly allowed defendants to assert the privilege. (45) Prior to
the use of defense counsel, criminal defendants refusing to respond to
incriminating evidence forfeited any defenses they had because if they
"did not or could not defend themselves, no one would do it for
them." (46) This view maintains that in order for the privilege to
function, a criminal defendant must be in a position to defend by proxy.
(47) Thus, it asserts that the privilege developed only when defendants
were finally allowed to be represented at trial. (48)

This Article does not aim to celebrate one view over the other, but
instead reconciles the aforementioned standpoints to provide a
comprehensible and reasonable account of the privilege's origin and
development from the thirteenth century on.

The Deification of a Feudal Document

On the plains of Runnymede on June 15, 1215, King John of England
affixed his seal to a feudal agreement that would become one of the most
important legal documents in the history of democracy--Magna Carta. (49)
Magna Carta greatly influenced the development of English common law, as
well as the constitutional law of England and beyond. (50) Specifically,
Chapter Twenty-Nine of Magna Carta provided that no free person could be
deprived of liberty except through the "law of the land." (51)
The provision embodied the principle that no one, not even the King, was
above the law--a principle that resonates to this day. (52)

More than five centuries later across the Atlantic Ocean, thirteen
English colonies declared that they were entitled to the liberties
guaranteed in Magna Carta as the document served to inspire and justify
the American Revolution. (53) The colonists later embedded Magna
Carta's liberties into the laws of their newly independent states,
(54) into the U.S. Constitution, (55) and into the Bill of Rights. (56)
Consequently, Magna Carta transformed from a "feudal aristocratic
document to an embodiment of common-law liberties" that are
recognized to this day. (57)

Development of Two Rival Systems of Criminal Procedure

After Magna Carta was signed in 1215, the English common law courts
developed an adversarial (58) system of criminal procedure comparable to
United States procedure today. (59) Once a criminal defendant was
indicted, a justice of the peace conducted a preliminary examination of
the defendant prior to trial. (60) Although common law criminal
procedure prohibited defendants from giving sworn testimony, their
unsworn statements were admitted. (61) Moreover, the judge was generally
passive during trial, and the court's role was solely to enforce
the rules of criminal procedure. (62)

Ironically in the same year that Magna Carta was signed, the head
of the Roman Catholic Church, Pope Innocent III, introduced an
inquisitorial system of criminal procedure for use by all European
ecclesiastical courts in prosecuting heresy. (63) Compared to the
English common law's adversarial system, inquisitorial procedure
was cruel and arbitrary, with every step shrouded in secrecy. (64) An
ecclesiastical judge had virtually limitless authority to imprison
suspects and try them in a proceeding in which the judge was accuser,
prosecutor, judge, and jury. (65) The court, however, never informed the
suspects of the charges and evidence against them, or of the identities
of their true accusers. (66)

Furthermore, extracting confessions became the crux of
inquisitorial procedure. (67) At the outset of every proceeding,
defendants were required to swear an oath called the oath ex officio
compelling them to answer all questions truthfully. (68) Refusal to
answer questions after swearing the oath ex officio or refusal to take
the oath both convicted the defendant of contempt. (69) Answering
questions falsely under the oath ex officio convicted the defendant of
perjury. (70) And because defendants were not informed of the charges
and evidence against them, any truthful answers under the oath put them
at risk of making statements that the ecclesiastical judges would regard
as confessions. (71) The oath ex officio forced defendants into what
became known as the "cruel trilemma"--or the
truth-falsity-silence trilemma--a predicament of being compelled to
choose between contempt, perjury, and self-incrimination. (72) As a
result, once defendants were placed under the oath ex officio, their
convictions were almost guaranteed. (73) Consequently, the oath ex
officio became known as a form of spiritual torture and became the
inquisitorial system's most odious feature. (74)

The English Crown's Interest in Inquisitorial Procedure

The King's Council or Privy Council was the most powerful
political institution in England and was responsible for advising the
King and administering the Crown's business. (75) It was comprised
of "the greatest officers of state, the most powerful nobles and
bishops, officers of the King's household, and the foremost lawyers
and judges." (76) The Council prosecuted crimes against the Crown
in its own courts, which maintained broad, discretionary jurisdiction
and a substantial amount of judicial work. (77) By the fourteenth
century, the Council began to take notice of the ecclesiastical
courts' inquisitorial methods, particularly their use of the oath
ex officio to secure convictions and compel even the most powerful
nobles to submit to official questioning. (78) The Crown recognized the
advantages of employing inquisitorial procedure in its own courts. (79)

In 1487, King Henry VII invoked the royal prerogative (80) and
created the Court of Star Chamber to become the judicial arm of the
Council, empowering it with the authority to use inquisitorial
procedure. (81) The royal prerogative was not bound by the common law;
thus, courts created under it lacked the safeguards that common law
courts provided for criminal defendants. (82) In prosecuting defendants
in the prerogative courts, the Council could "use any procedure it
wished and dispense with its usual procedure when it wished." (83)
Though Parliament condemned the Council's use of inquisitorial
procedure as violating Magna Carta and the common law--which required
formal indictments and prohibited criminal proceedings upon secret
accusations--these methods simply worked too efficiently for the Crown
to give up. (84)

The Tudor Dynasty (85) and the English Reformation

The English Reformation (86) began in 1534 when King Henry VIII
broke with the Roman Catholic Church and proclaimed himself the supreme
head of the newly-established Church of England. (87) Henry VIII and his
son, King Edward IV, persecuted those who continued to support the Roman
Catholic Church. (88) When Mary I, known as "Bloody Mary,"
ascended to the throne in 1553, she returned the Church of England to
Roman Catholicism (89) and instituted a reign of terror to enforce the
Catholic faith against all religious non-conformists. (90) Mary invoked
the royal prerogative and created the Court of High Commission to become
the ecclesiastical arm of the Council, empowering it with the authority
to use inquisitorial procedure. (91) The High Commission used the oath
ex officio to prosecute, convict, and execute many accused
heretics--some of whom were executed merely for refusing the oath. (92)

After Mary, Elizabeth I took the throne in 1558 and established the
Anglican Church as the official Church of England. (93) Soon after, a
group of English Protestants called Puritans criticized Anglicanism and
threatened Elizabeth's sovereignty. (94) In response, Elizabeth
directed the High Commission to prosecute all Puritans and
non-conformists. (95) The High Commission under Queen Elizabeth
possessed unprecedented ecclesiastical jurisdiction and employed more
stringent inquisitorial methods. (96) The Courts of High Commission and
Star Chamber worked in tandem to prosecute all religious and political
opposition to the Crown; those who refused the oath ex officio before
the High Commission languished in jail for contempt, while those who
refused the oath before the Star Chamber were convicted of the crime
charged. (97)

Opposition Against Inquisitorial Procedure Intensifies

In the sixteenth century, increasing numbers of defendants before
the High Commission and England's ecclesiastical courts refused to
take the oath ex officio, (98) Additionally, the English common law
courts opposed the ecclesiastical courts' growing jurisdictional
authority. (99) By the early seventeenth century, more and more people
declared "that to coerce a man to testify against himself, with or
without oath, was simply unjust--an outrage on human dignity and a
violation of the very instinct of self-preservation." (100) Those
who challenged the oath ex officio asserted two primary arguments.

First, they cited the Latin maxim, nemo tenetur seipsum prodere (or
nemo tenetur seipsum accusare), meaning "no one is bound to accuse
himself." (101) The maxim became a rallying cry for persecuted
Puritans and non-conformists, and by the end of the sixteenth century
became renowned in resisting inquisitorial methods. (102) More
importantly, the nemo tenetur maxim was the precursor to the modern-day
privilege against self-incrimination and influenced the common law of
the United States, (103) the cognate provisions of state constitutions,
(104) and the Fifth Amendment to the U.S. Constitution. (105)

Second, those who resisted inquisitorial procedure contended that
it violated Magna Carta's "law of the land" provision,
which guaranteed every person "an indictment by grand jury and
trial by jury in a common-law court by common-law procedure." (106)
Furthermore, they claimed that inquisitorial procedure violated Magna
Carta's Chapter Twenty-Eight, which prohibited bailiffs from
placing defendants under oath without producing the witnesses against
them. (107) Although their contentions that Magna Carta specifically
supported a right against self-incrimination may have been historically
unsound, (108) objectors nonetheless cited Magna Carta as the source of
liberty on the subject. (109)

The Stuart Dynasty (110) and the End of the Oath Ex Officio

After Queen Elizabeth's death, the initial monarchs of the new
Stuart dynasty used the prerogative courts to commit such notorious
abuses that over three centuries later the U.S. Supreme Court cited them
as the motivating force behind the privilege against self-incrimination
embodied in the Fifth Amendment. (111) In 1603, King James I ascended to
the throne and strengthened the High Commission's crusade against
Roman Catholics, Puritans, and other non-conformists. (112) Nonetheless,
defendants before the Commission continued to refuse the oath ex officio
and claim the nemo tenetur maxim and Magna Carta. (113) During this
time, the English common law courts mounted their own assault against
inquisitorial procedures." (114) Common law judges increasingly
issued writs of prohibition against England's ecclesiastical courts
barring them from hearing common law matters, (115) and also asserted
that the common law must govern in all courts created by royal
prerogative such as High Commission and Star Chamber. (116)

In 1625, James's son Charles I took the throne, dissolved the
Parliament, and used the Courts of High Commission and Star Chamber
(117) in a merciless campaign against all religious and political
dissidents. (118) He proclaimed that those who refused the oath ex
officio were to be held pro confesso--as having confessed their own
guilt--and legally convicted. (119) Moreover, because only the Court of
Star Chamber could punish by torture and mutilation, (120) the High
Commission transferred its convicted victims to the Star Chamber so they
could suffer the "peculiarly gory punishments" that the High
Commission could not inflict. (121) As countless people watched the Star
Chamber's gruesome public punishments, outrage against both
prerogative courts intensified. (122)

Then, in 1637, the Crown arrested a young Puritan named John
Lilburne, a twenty-three-year-old libertarian who fearlessly opposed the
Stuart monarchy, and who eventually focused all of England "on the
injustice of forcing a man to be the means of his own undoing."
(123) More than three centuries later, the U.S. Supreme Court cited the
Crown's proceedings against Lilburne as being instrumental in
developing the modern-day privilege against self-incrimination. (124)
The Crown initially arrested Lilburne for smuggling seditious books into
England in violation of a Star Chamber decree. (125) When the prosecutor
interrogated Lilburne prior to his trial, Lilburne refused to answer any
questions unrelated to his criminal charge. (126) He declared that
unless he could confront his accusers regarding those unrelated matters,
under Magna Carta he had the liberty to refuse to speak "for fear
that with my answer I may do myself hurt." (127)

When Lilburne appeared before the Star Chamber for trial, he
refused to take the oath ex officio, arguing against its illegality and
immorality. (128) Instead of finding Lilburne pro confesso on the
charge, however, the Court of Star Chamber convicted him of contempt and
sentenced him to a harsh fine, savage lashing, pillorying, and
imprisonment. (129) As officers tied Lilburne to the back of a cart in
public and whipped him nearly to death, Lilburne launched into an
impassioned speech describing the injustice that he suffered for
refusing to take the oath ex officio, which captivated many onlookers
made him extremely popular almost overnight. (130) While imprisoned,
Lilburne also smuggled out pamphlets that detailed his suffering, which
were published and circulated widely across England. (131)

Soon after, King Charles I, cash-strapped and on the brink of civil
war, accepted the formation of a new Long Parliament, which immediately
denounced the Crown's oath ex officio practice and freed Lilburne
and others like him. (132) In 1641, the Long Parliament wholly abolished
the Courts of Star Chamber and High Commission, and declared that only
common law procedure governed matters of life, liberty, and property.
(133) After the subsequent English Civil War and the restoration of the
monarchy under King Charles II in 1660, English common law courts
recognized the privilege against self-incrimination in both criminal
(134) and civil cases, and extended it to protect witnesses as well.
(135) By the end of King Charles II's reign in 1685, the privilege
against self-incrimination was a respected rule in English law. (136)

The Privilege Migrates to Colonial America; Its Use in Criminal
Procedure

During the advent of the New World, England granted its American
colonies charters that guaranteed them all of the liberties that English
law provided. (137) As the colonies' legal systems developed and
their judges and lawyers looked more and more to English law for
guidance, the privilege against self-incrimination became entrenched in
American jurisprudence. (138) The privilege at common law was a
privilege against compulsory self-incrimination, (139) "thought to
ban only testimony forced by compulsory oath or physical torture, not
voluntary or unsworn testimony." (140)

Colonial justices of the peace routinely examined criminal suspects
before trial in attempts to coerce their confessions, but never
conducted such examinations under oath. (141) Though unsworn, a
suspect's statements during the pre-trial examination could later
be used against the suspect at trial. (142) Furthermore, although
justices of the peace recognized the privilege against
self-incrimination during these proceedings, they typically informed
juries of a suspect's refusal to speak. (143) To be sure, the
common law privilege did not afford criminal suspects the right to
suffer no consequences for their refusal to speak.

During the eighteenth century, common law courts established a
procedural rule barring criminal defendants from offering sworn
testimony at trial on the ground that "[a]nyone having a personal
stake in the outcome of a trial was thought to be so irresistibly
tempted to perjury that his testimony was regarded as
untrustworthy." (144) Accordingly, criminal defendants were
prohibited from testifying under oath because they had the highest
personal stake in the outcomes of the proceedings against them. (145)
Despite their testimonial disqualification, defendants actively
participated in their trials, replying to the prosecutions'
arguments and answering the courts' questions. (146) Particularly,
for serious crimes such as felonies and treason, defendants were not
allowed counsel, and so their most fundamental defense was to respond to
the charges against them. (147) As courts granted criminal defendants
rights to counsel and to call witnesses, defendants spoke less and less
during the proceedings against them. (148)

The Common Law Privilege Becomes a Constitutional Right

On June 12, 1776, the Virginia Constitutional Convention adopted
one of the most influential documents in American history called the
Virginia Declaration of Rights. (149) Originally drafted by George
Mason, the Declaration proclaimed the inherent rights of all
individuals. (150) Particularly, Section (8) of the Declaration
enumerated the rights of criminal defendants at trial and provided that
no person can be "compelled to give evidence against himself."
(151) The Declaration became a model for the constitutions of the
newly-independent states; by the end of the American Revolution, eight
states followed Virginia and incorporated the privilege against
self-incrimination in their own constitutions. (152)

More importantly, the Virginia Declaration influenced the Bill of
Rights. (153) After the Revolution, the American public, having recently
suffered the English government's oppression, was particularly
apprehensive of the newly-formed U.S. national government. (154) In
response, during the First Congress in 1789, Representative James
Madison submitted a proposal of constitutional amendments to "prove
that the new national government was a friend of liberty." (155)
One of Madison's proposed amendments read:

No person shall be subject, except in cases of impeachment, to more
than one punishment or one trial for the same offence; nor shall be
compelled to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor be obliged to
relinquish his property, where it may be necessary for public use,
without a just compensation. (156)

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